Mst. AJAIB BIBI vs S. SAKHAWAT SHAH and 3 others
This matter concerns a criminal revision application filed by the complainant under Section 497(5) of the Code of Criminal Procedure 1898, seeking the cancellation of bail granted to the accused-respondents by the Additional Sessions Judge, Abbottabad, in a case involving charges under Sections 302 and 201/34 of the Pakistan Penal Code 1860. The core legal question was whether the trial court exercised its discretion judicially in granting bail despite the existence of incriminating circumstantial evidence, specifically a statement recorded under Section 164 of the Code of Criminal Procedure 1898 by a driver who witnessed the transportation of the deceased's body. The High Court held that the accused were prima facie connected to the commission of the offence, which falls within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. Consequently, the Court cancelled the bail, ruling that factors such as the lack of misuse of bail or the proximity of the trial do not override the existence of a prima facie case in serious offences. The Court emphasized that bail should not be granted when there is sufficient material linking the accused to the crime.
- Does the fact that a trial is scheduled to commence shortly constitute a valid ground for granting bail in a murder case?
- Can bail be cancelled if the accused has not misused the concession of bail?
- Is a statement recorded under Section 164 of the Code of Criminal Procedure 1898 sufficient to establish a prima facie case for the purpose of bail adjudication?
- Does the existence of a prima facie case for an offence falling under the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 necessitate the refusal of bail?
- Section 497(5), Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 201, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
' This is an application by Mst. Ajaib Bibi complainant under section 497(5), Cr.P.C. For cancellation of to the accused-respondents by learned Additional Sessions Judge, Abbottabad vide order, dated 1-3-2000.
2. The prosecution story, as narrated by the complainant is that on 10-6-1999 'at 12-00 hours Mst.
Sughra Bibi accompanied by the accused-respondents had come to the house of the complainant at Rawalpindi in order to visit them. On return Latif Shah deceased was also taken alongwith to participate in an engagement ceremony. The deceased did not return back. The complainant started search for the deceased but with no success. The complainant has come to know that the deceased has been done to death in the house of Nargis Shah son of Wilayat Shah situated at Village Sheikhul. Bandi, Abbottabad. The dead body was concealed in the house.
Subsequently, the same was thrown at Village Salhad. Explaining the motive it was disclosed that two years prior to the occurrence Suleman Shah father of the accused-respondents was murdered and the deceased was' suspected of having a hand in the said murder.
3. Resultantly, a case under sections 302 and 201/34, P.P.C. Was registered against the accused- respondents and their mother Sughra Bibi vide F.I.R. No,664, dated 14-6-1999 at Police Station Abbottabad Cantt.
4. The local police Abbottabad on 13-6-1999 recovered a dead body lying near a dumping ground Abbottabad. On the following day the complainant identified the dead body to be of her missing husband. The dead body was subjected to post-mortem examination the same day and time elapsing between death and post-mortem examination was found to be between 72-78 hours.
5. During the investigation of the case a Suzuki driver, namely, Muhammad Arif Khan son of Muhammad Akbar Khan, resident of Village Sheikhul Bandi Abbottabad in his statement recorded on 17-6-1999 under section 164, Cr.P.C. Deposed that on 12-6-1999 at about 6 p.m. His co-villager Nargis Shah had asked him to bring his Suzuki in order to take his ailing niece to the doctor. When he went to the house of Nargis Shah at about 7 p.m., a dead body was brought out from the house and placed in the Suzuki. Sakhawat Shah and Abid Shah accused-respondents sat on the front seat of the Suzuki whereas a man and a woman occupied the rear seat and sat beside the dead body. He drew the Suzuki and the dead body was thrown by the occupants of the Suzuki at Kach Colony Abbottabad. He was asked not to disclose the matter to anyone.
6. Mst. Sughra Bibi and the accused-respondents applied for grant of bail. Mst. Sughra Bibi was enlarged on bail whereas the prayer of the .Accused-respondents was declined by order, dated 6- 1-2000 of Judicial Magistrate, Abbottabad.
7. After being unsuccessful to get bail from the lower forum the accused-respondents moved an application for grant of bail before the learned Additional Sessions Judge, Abbottabad which was accepted and they were released on bail vide order, dated 1-3-2000 which has caused annoyance to the complainant.
8. Mr. Shabbir Hussain Shah, Advocate appeared on behalf of the complainant. The State was represented by Mr. Muhammad Ayub learned A.A.-G. Mr. Ghulam Mujtaba Khan Jadoon, Advocate addressed arguments for the accused-respondents.
9. Learned counsel for the complainant seeks cancellation of bail principally on the ground that in view of the material available before him, the learned trial Judge had no justifiable reason to accept the application of the accused-respondents and release them on bail. Additionally, it has been urged that the medical evidence corroborated by the statement of Muhammad Arif Khan, driver was sufficient to link the accused-respondents prima facie with the murder of Latif Shah deceased. To substantiate the pleas, he relied on 1999 SCM R 338, 1998 PCr.LJ 746 (Peshawar), 1996 PCr.LJ 795 (Karachi) and 1984 PCr.LJ 2219 (Peshawar).
10. Learned A.A.-G. For the State assisted by learned counsel for the accused-respondents, on the contrary, defended the impugned order and maintained that due to lack of evidence, the learned trial Judge had valid reasons to allow the bail application and thus, the impugned order hardly calls for any interference. It was also added that the concession of bail has not been misused by the accused-respondents and it is established practice of the superior Courts not to grant or cancel bail in a murder case, when its trial is to commence within a short time. Reliance was placed on 2000 PCr.LJ 1171 (Peshawar), 2000. PCr.LJ 1574 (Karachi), 2000 YLR 1252, 1998 Cr.LJ 339 (Lahore), 1999 M LD 979 and 1998 SCM R 1578.
11. Having heard the arguments and submissions of the learned counsel for the parties in the light of the rulings cited at the bar I find that the accused-respondents are prima facie connected with the guilt and as such the learned trial Judge had no justifiable reason to release them on, bail notwithstanding the fact that Muhammad Arif Khan' Suzuki driver fully implicates them with the guilt.
12. It is true that no one claims having seen the deceased in the company of the accused- respondents and the prosecution case mainly rests on circumstantial evidence but the fact cannot be lost sight of that Muhammad Arif Khan driver in his Magisterial statement recorded on 17-6-1999 has fully implicated the accused-respondents with the guilt and confirmed having shifted the dead body of the deceased from the house of Nargis Shah to the dumping field at Salhad at the instance of Nargis Shah. He has also deposed that Sakhawat Shah and Abid Shah accused- respondents had sat with him on the front seat of the Suzuki whereas a man and woman had occupied the rear seat and sat beside the dead body.
13. The mere fact the statement of the Suzuki driver has been recorded after 5 days of the shifting of the dead body; that the accused-respondents have not misused the concession of bail and the trial is to commence within a short time, by itself constitute no valid ground for allowing bail to the accused-respondents who are otherwise prima facie associated with the guilt. The order granting bail is contrary to the evidence on record from which a prima facie case of involvement of the accused-respondents is made out.
14. The case-law cited on behalf of accused-respondents proceeds on different facts and speaks of the different situation. It is of no help to the accused-respondents. I accordingly, agree with the learned counsel for the complainant that it is not a case for the admission of the accused- respondents on bail who are prima facie liable under sections 302 and 201/34, P.P.C. Which fall within the prohibitory clause of section 497, Cr.P.C.
15. The application of the complainant is accepted and the to the accused-respondents per the impugned order, is recalled.
16. Sakhawat Shah and Abid Hussain Shah accused-respondents are present in Court whereas Nazir Hussain Shah is stated to be in jail. The present accused-respondents be taken into custody and sent to jail to await their trial.
17. I would like to make it clear that all the observations made in this order are to be taken for the purpose of disposal of this application alone and would have no bearing at the stage of trial. The learned trial Judge shall form his own opinion on the basis of evidence produced before him.
Bail cancelled.